Defamation Allegations: Should You Retract or Double Down?

In recent weeks, we have seen many defamation lawsuits filed. The most prominent of these have concerned allegations that individuals (and media outlets) have made false and derogatory statements about the Dominion and Smartmatic voting systems. The litigation argues that the statements and actions by prominent people and media have dramatically harmed them financially.

The filing of a lawsuit is a last resort in this process.

We have all made comments or done things, unaware that they were wrong or harmful. Usually, when we are informed of what we did, we apologize. There may be residual hard feelings, but the apology at least gives a starting point for healing.

This process works for innocent mistakes. Defamation cases arise when the individual knows, or should have known, that what they are saying or doing was wrong.  

The first step in the defamation process is to give individuals the benefit of the doubt. A lawyer sends a letter to the individual stating three things: what was said (or done), why it was wrong or harmful, and what corrective action is requested. The “corrective action” may be nothing more than “don’t do this again” or may rise to the level of “retract your statement publicly and pay us for the damage you caused.”

If the mistake was innocent, the party receiving the letter will generally apologize and take appropriate action to make things right.

Even if the mistake was not innocent, the party receiving the letter may stop what they were doing anyway in order to not further compound the problem. Legally, this is called mitigation of damages. In other words, things may be bad, but we can at least keep things from getting worse. Under these circumstances, the parties may come to an agreement about how best to resolve the matter, possibly including some financial compensation.

If the offending party refuses to acknowledge what they did (allegedly), the only recourse is to file a suit for defamation. This complaint will list the elements that were included in the letter (what was said/done and why it was harmful). The complaint ends with a “prayer for relief”—what is requested—that may include a demand for a retraction and money damages.

Not all defamation lawsuits end up in a trial. Often, after the full extent of the wrongdoing has been revealed (through depositions of individuals with personal knowledge and expertise or the production of documents), the case is settled.

Throughout this process, the lawyer regularly sits down with the defendant client and goes through a risk/reward analysis—is the risk of an adverse (and perhaps costly) judgment greater than the benefit of continuing to contest the action. The willingness to carefully evaluate the actual risks and rewards varies, of course, from client to client. To put it bluntly, some clients refuse to admit mistakes and will double down, continuing to do the things that gave rise to the defamation action.

As you watch the Dominion and Smartmatic lawsuits progress, focus on the actions and responses of the defendants. Even subtle changes in their behavior may tell you a lot about the strength of the case. For other defendants, expect the doubling down to continue, regardless of the risk.